No payment made by any owner to any contractor for the purpose of avoiding any anticipated lien of any subcontractor shall be valid; and if any person files either of said statements for a lien for a larger sum than is due or to become due, in fact, or in probability, as the case may be, with intent to cheat or defraud any other person, and that fact appears in any proceeding under this article, such person shall forfeit all rights to such lien under this article.
Source: L. 1883: p. 235, § 29. G.S. § 2159. R.S. 08: § 4047. C.L. § 6464. CSA: C. 101, § 37. CRS 53: § 86-3-23. C.R.S. 1963: § 86-3-23.
ANNOTATION
Trial court should invoke forfeiture on its own initiative when the facts warrant its application whether or not it has been affirmatively pleaded. Pope Heating & Air Conditioning Co. v. Garrett-Bromfield Mtg. Co., 29 Colo. App. 169, 480 P.2d 602 (1971).
"Cheat or defraud" standard encompasses "knowledge". The "cheat or defraud" standard as to the lien claimant's state of mind in this section encompasses the "knowledge" standard in § 38-22-128. If a person intends to cheat or defraud someone regarding the amount of a mechanic's lien, he would necessarily have to have had knowledge that the amount was in error. Concrete Contractors v. E.B. Roberts Constr. Co., 664 P.2d 722 (Colo. App. 1982), aff'd, 704 P.2d 859 (Colo. 1985).
This section is facially irreconcilable with § 38-22-128, but since § 38-22-128 was enacted later, it controls. Wigham Excavating v. Colo. Fed. S & L, 796 P.2d 23 (Colo. App. 1990).
Applied in Armour & Co. v. McPhee & McGinnity Co., 87 Colo. 97, 285 P. 942 (1930).